kansas appellate practice handbook - Kansas Judicial Branch

12-96 Forms
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P.2d 370 [1993]). (R. XII, 192; State’s Exhibit 5). See, K.S.A. 21-3701(b)(5) (“Theft of
property of the value of less than $1,000 is a class A nonperson misdemeanor.”)
The State presented no evidence that Mr. Doe took the magazine by force or threat
of bodily harm. This Court must, therefore, vacate his convictions for aggravated robbery
and remand to the district court with directions to resentence him for misdemeanor theft.
Issue II:
Mr. Doe’s two convictions for aggravated robbery are multiplicitous,
and violate the Fifth and Fourteenth Amendments to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights.
Standard of Review and Preservation of the Issue
Defense counsel raised this issue below. (R. XIII, 375). Moreover, this Court “may
consider a multiplicity issue for the first time on appeal ‘to serve the ends of justice or
prevent a denial of fundamental rights.’” State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234
(2010). Finally, this Court has unlimited review over the question of whether two convictions
are multiplicitous. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
Analysis
In Schoonover, the Kansas Supreme Court “provided a roadmap for determination of
multiplicity issues.” State v. Gomez, 36 Kan. App. 2d 664, 669, 143 P.3d 92 (2006). In order to
determine if convictions are multiplicitous, a Court must determine whether the convictions
are for the same offense. Convictions are for the same offense if they (1) arise from the
same conduct, and (2) constitute only one offense by statutory definition. Convictions do
not arise from the same conduct if the conduct is “discrete, i.e., committed separately and
severally.” If, however, the charges arise from the same act or transaction, then the conduct
is unitary, and the convictions do arise from the same conduct. Under such circumstances, a
reviewing Court must next determine whether the convictions are for violations of the same
statute, or two or more different statutes. If the former is true, the Court must apply the
“unit of prosecution test”; if the latter is true, then the Court applies the “same-elements”
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test. Gomez, 36 Kan. App. 2d at 669 (citing Schoonover, 281 Kan. at Syl. 15).